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Judge Rules Against City on Dutra Project, Opponents Vow to Keep Fighting

In a 30-plus page written opinion, Sonoma County Judge Rene Chouteau concludes Dutra asphalt plant will not cause significant air, noise and other impacts and is allowed under the county's General Plan

A Sonoma County judge has rejected the lawsuit filed by the city and a coalition of community groups to block a new asphalt plant near Shollenberger Park, dealing a resounding blow to the six-year long effort to stop the project.

“We are very disappointed by Judge (Rene) Chouteau's failure to find in favor of our community coalition¹s legal challenge to protect Shollenberger Park, the Petaluma River and our community's health and economy,” said Joan Cooper, president of Friends of Shollenberger, one of the plaintiffs, in an issued statement.

“Judge Chouteau has rejected our plea to preserve the gateway to Sonoma County from blight and protect the people of Petaluma from Dutra's industrial pollution.”

In a written opinion released a day before Christmas and totaling more than 30 pages, Judge Chouteau dismissed all arguments presented by the plaintiffs, including that Dutra's facility, that would include two 62 foot storage towers and churn out 225,000 tons of asphalt a year, would increase traffic, noise and air pollution. (See the full opinion in attachments on the right)

Mayor Dave Glass said he was dismayed at the ruling, but not sorry the city and local organizations challenged the project in court.

"The majority of people in District 2 aren’t going to be happy when this thing gets built," Glass said. "The board of supervisors and the planning commission let this community down tremendously."

However, Glass said that many changes aimed at curbing the plant's impact were added as a direct result of the hard work done by the city and many volunteers.

"To me, this emphasizes the importance of voters seeking out the values of the folks they elect," Glass said. 

In his written opinion, Judge Chouteau dismissed all 11 arguments presented by plaintiffs, including allegations that the project was improperly noticed, had been altered and did not give the public enough time to review new documents. 

On the issue of traffic:

Judge Chouteau wrote that “although a staff report noted that there would be a possible new significant impact from increased truck traffic, it determined that the proposed mitigation measure, a new traffic signal, would be more than sufficient to keep the impact less than significant.”

On air pollution:

Chouteau said that there was no evidence there will be increased air pollution from trucks traveling to and from the facility, located just off the Petaluma Boulevard South exit.

With regard to air pollution from barges moving materials down the Petaluma River, Chouteau noted that the Shamrock dock, the Landing Way Depot, already operates under a permit that allows up to 768,000 tons a year to be transported and that the new asphalt plant would not increase that amount. 

Noise:

Plaintiffs raised concerns that the conveyor that will move aggregate from the Dutra facility through Shamrock and onto barges will cause significant noise pollution.

But Chouteau said his assessment of the Environmental Impact Report was that it would not exceed County General Plan Performance Standards on noise, and thus “not cause any significant impacts.” In addition, noise from falling aggregate was found to be “lower than existing ambient noise.” 

On the issue of Wetlands Destruction:

As part of the suit, plaintiffs had argued that a conveyor through a wetlands mitigation area would destroy or negatively impact the sensitive ecology of the wetlands. But Judge Chouteau said that the Shamrock wetland is a “poor-quality wetland site on former industrial land with old dredge spoils and dominated by non-native plants.”

He added that the construction of a conveyor, built on piers, will physically impair only a small portion of that wetland leaving most of it unchanged and that the wetland credits purchased at a “wetland bank” will be better-quality wetland adjacent to the same waterway.

Alleged Brown Act violations:

Plaintiffs had argued that the Sonoma County Board of Supervisors violated the Brown Act by not allowing the public to speak at the Dec. 14, 2010 meeting when the deciding vote was cast. However, Judge Chouteau said that the public had been allowed to speak on the topic during the October 12 hearing and the board was not required to take further testimony.

The Brown Act, which governs the meetings of public bodies such as City Council and the Board of Supervisors, specifies that meetings must be noticed at least three days in advance and that the public to address the board on any issue not previously discussed.

A message left for Dutra Materials was not immediately returned Wednesday morning.

The plaintiffs are now considering an appeal of the ruling and say the decision is a slap in the face of Petaluma's most popular park that offers 500 acres of wetlands and some 200 species of birds.

“Our attorneys feel we have many legal issues that could find merit at a higher court,” the group said in a statement. “The community's efforts to save Shollenberger Park, our river, Petaluma's health and economic vitality are not over yet. Our city, community and extended family have supported these battles for several years, and will not give up now.”

What do you think about the judge's decision? Should the city and the coalition of nonprofits file an appeal? Sound off in the comments below.

Sonya December 28, 2011 at 08:44 PM
The judge made a huge mistake by letting Dutra move ahead and proceed to spoil our environment. This must be taken to the next level; which it surely will. Thank you to Joan C, David K, and all who continue to work on this issue. We are the 99%. Sonya T.
LongTimeLocal December 28, 2011 at 10:30 PM
Admittedly I have no idea how this works but can't Petaluma simply annex the land in question thus solving the problem and expanding the parkland area? As it adjoins Petaluma City surely there is a reasonable case, and existing industry already qualifies the city for dredging (although only to 20', not the desirable 30' that we haven't been able to afford anyway)?
Karina Ioffee December 28, 2011 at 10:57 PM
We asked Mayor Glass about this and he said the process would be extremely difficult. It would require Sonoma County Local Agency Formation Commission (LAFCO) to approve the annexation and require the permission of the property owners (Dutra and Shamrock). Which is not likely to happen.
LongTimeLocal December 29, 2011 at 12:42 AM
Thnak you for asking Karina so we know the official line. Yet, SMART, would be able to eminent domain the corner of Corona for a station if they wished and ever had the money. Given that precedent, eminent domain would surely apply to expand the city limit as has been done so some many times before, especially to extend the reach of Shollenberger and to secure the attractiveness of the entryway to Sonoma county for our tourist industry. Makes you question of the true motivation of the city when you think of it. The solution lies there for the taking, and it's not that difficult as Mayor Glass would have us believe... Time for action of the council to grow a pair, unless they're not already of loan to Aimee :-)
joey vandermei December 29, 2011 at 04:22 AM
I think the judge,the supervisors and all who favor Dutra have been payed off one way or another through votes, money, pet projects, gifts, ect. Dutra is is very,very rich and corrupt company and no matter how many times they break the law they seem to get away with it in every county they operate in, so I can only assume they have literally bought off everybody that can serve them. Remember asphalt, oil, refuse ect all run by gangsters some just wear suits.This is a big slap in the face of American values. Again The USA was founded on certain rights, and they included a government by the people for the people, and in this case and others Dutra has won against, what the majority voted on and demanded was never honored or respected one company with lots of money and influence was allowed and still is allowed to trample on all of our rights. such shame and I can understand why people have lost faith in the system
Joan Cooper December 29, 2011 at 05:55 AM
True - Measure D was passed by a SUPER majority of the voters of Sonoma County in 1998 to preserve the rural character of the view corridor from Marin County border to Petaluma's urban limits. The 2020 General Plan reaffirmed the public's desire to protect this area by eliminating an exception for previously commercially zoned parcels. It allows the Supervisors to change zoning only if they are reducing use intensity or increasing protections. Judge Chouteau's ruling ignores this protection for the Dutra riverside parcels, allowing the Supervisors to rezone them to Light Industrial. This more intense use zoning will remain in force for ANY industrial operation in the future. Only Dutra is limited to a river dependent operation. They might decide to sell these parcels in the future - now more valuable with the wave of a hand by 3 Supervisors, with light industrial zoning - and the land could be the site of ANY light industrial operation. The people's power - the citizens who voted for Measure D in 1998 - has been ignored in favor of the Board of Supervisors power. Only Sup. Efren Carrillo remains from the three Supervisors who approved this plant. Voters will remember Sup. Carrillo when he runs for re-election as the man who ignored the voters' mandate to preserve and protect the open space designated by Measure D . Reply
LongTimeLocal December 29, 2011 at 06:38 AM
So any thoughts on how we stop this monstrosity Joan? I know we're disagreed in the past in this forum but on this we totally agree. I can't think of a single good reason for Dutra choice of this location. Perhaps Aimee would pledge to buy a house and live in it next door then she'd get the point.
Joan Cooper December 29, 2011 at 04:28 PM
Talking about buying a house - I understand that KB Homes is trying to sell their 250+ homes (Quarry Heights) which are located in Ame Dutra's own words: ' Just a stone's throw" from the new asphalt plant. SO close that the judge mistakenly used the pollution output from that and Dutra's other temporary asphalt plant( closed previous to the formal application of the project) to offset the pollution analysed in the Health Risk Analysis of the EIR for Revision 1 of the project (Revision 2 the final project had no Health Risk Analysis done) That's the only reason the new factory was said to be below the level of significance (10). SO, if the judge thinks the old plant and the new plant are one and the same, then the people buying homes at Quarry Heights (aptly named) will be living right at an asphalt plant OR more accurately just a stone's throw from Dutra's new plant. Sales force at KB does not "know" about the asphalt plant that is coming to their neighborhood and is not informing prospective buyers. So buyer beware, somewhere in KB's disclosures, which they refuse to disclose to us, there is some fine print about the negative impact of a asphalt plant on housing values. Read the fine print - what can we do - write to KB and ask for help in funding the appeal to stop in your words "this monstrosity."
Bill Fishman December 29, 2011 at 06:36 PM
Somebody, needs to bell the cat. Somebody, now, needs to be sure that the plant is built according to the "new and improved" specifications that were cited in Dutra's presentation to the Board of Supervisors. (I don't know if our rural-oriented PRMD is up to the task. A condition of issuance of the permit should be that Dutra cover the cost of the County hiring inspectors and plan-checkers familiar with this sort of construction.) Once built, somebody needs to monitor air samples and runoff to make sure that the plant does not exceed standards that Dutra agreed to. (I would hope that the use permit is conditional on meeting or exceeding measurable standards.) Upon the first (and every successive) violation of standards, somebody needs to have ready to file (1) an application for a temporary restraining order to shut the plant down and (2) an application for a writ of mandamus requiring the County of Sonoma to enforce the conditions that it set on this project -- because we know the County won't do it on its own. SOMEBODY needs to bell the cat. ANYBODY?
Karina Ioffee December 29, 2011 at 06:55 PM
There are more than 100 conditions that Dutra has to meet in building the project, which I have posted as another attachment to this story. County offices are currently closed, but once they do reopen Jan. 3, the person to contact re: this issue will be project planner Steve Padovan at 565-1352.
Mikhael December 29, 2011 at 09:24 PM
Unfortunately I do not remember the names of the specific companies that were responsible, but within the past decade several asphalt production facilities in Sonoma County have been severely fined due to the fact that they were dumping waste in their local waterways, what is going to keep Dutra from doing the same? Especially when our river is already so filthy that it will be nigh on impossible to see the evidence without extremely costly testing? I agree that it appears that once again the people's wants and desires are being brushed aside so that a few people can line their pockets, similiar to the proposed Kenilworth shopping center (which will undoubtedly be named after whichever company pays the most for the advertising). As Joan stated, remember who made these decisions come the next vote. It's time to replace the power-hungry with people who actually care about keeping our community as it is, a community, not some conglomerate suburbia where you don't even know your neighbors.
Go Occupy! December 30, 2011 at 06:00 AM
Can't we channel the spirit of Alfred Hitchcock (The Birds, 1963) at this point? We got birds. We got a villain(s). We got upset townsfolk and pitchforks, and, we got a location. I wonder if the judge that did this to us ever took a walk at the park to see what will be destroyed by this decision? Well, look on the bright side, now that the 1% have passed a law that allows corporations to be classified as "people", it will be just like having a friendly neighbor move in next door.... with "...two 62 ft. asphalt storage towers and thousands of trucks wafting trails of toxic and stinking asphalt smoke... " in their front yard.
LongTimeLocal December 30, 2011 at 09:56 AM
While I think this an abomination, and on that we agree, once again you're spouting absolute nonsense about the 1% conspiring to treat corporations as 'people' and implying a recent change. First off, where are you getting your percentages from, secondly you don't speak for me, or the majority most likely, third, even the most simple minded realize there are many types of corporation, and they are most certainly not treated as people. Yes, wrong place and I oppose, but your lack of factual information does no good in convincing others of a reasonable case as you're spouting yet more idiotic party line that does more harm than good and makes the case more difficult for the rational. But then again, what would the gullible need facts for... just repeat enough times and someone will buy in... it would certainly appear you don't need any and you are harming the cause. Even Wikipedia gets it roughly right and describes it as 'legal fiction'. http://en.wikipedia.org/wiki/Corporate_personhood And, by the way, the 'legal fiction' of 'personhood' dates back to the late 19th century, so that's a pretty long conspiracy theory you've got going there among your illiterate friends - then again, whatever is convenient without actual facts...
Go Occupy! December 30, 2011 at 01:57 PM
What saddens me is to see such an extreme case of your head-in-a-bucket syndrome. "Hello! This is 1953 calling, we need our bucket back!" Wikipedia, that's the site where anyone can write anything with absolutely no credentials so that people have a "source" to refer people to. Did Rush Limbaugh have a ghost writer put that page up? Maybe Glen Beck had it assembled. Also, what exactly is it that you don't get about the 1% - 99% concept? It is really easy and simple to understand on purpose. It is a financial separation and all of you republicans that have been trying your best to obstruct Obama's recovery plans either thru your hate & bigotry, or your voting against your own best interests, do nicely fit in to the 99%. In simpler terms, you, like it or not, kicking and screaming like a baby saying you are not..., are part of the 99%. Financially, we are all (except the 1%) in this together. The entire country is suffering and all you republicans do is parrot what you hear on Fox News. PS- Fox News is part of the 1% and uses its viewers to carry water for the 1% but they are too naive to know they are being used. Just like what you write here on your chatboard; it is obvious that you are unable to connect the dots so I'll do it for you. If you are upset that the asphalt plant might be built, yet you still promote the forces that are causing it to happen, you will be doomed to wear your bucket for eternity.
LongTimeLocal December 30, 2011 at 09:36 PM
You continue to make the point about the gullible. It's the 14th Amendment of the US Constitution c.1894. Ever heard of that? Heck, go see it on paper, unless, of course, Glenn Beck gets there first with his eraser as you seem to be implying possible. No more from me to you on this matter as you are clearly uneducated and doing so much more harm than good. So Republicans are the 1%? Should make it an easy election of any other party then, though I imagine you have an equally well thought out theory about how that's possible. Nothing like a movement that brings people together by excluding approximately half of the population, nor one that likes to choose which facts to believe and twist to suit. Like I say, no more than correcting your history, warped to suit a muddled chant among the gullible. Don't spoil this for those of us who believe this is worth fighting to save - idiotic inaccuracies, like I see from your comments, spoil the case for stopping this for absolute certain.
Ptown December 30, 2011 at 10:21 PM
Totally agree LTL, while I agree with many of the Petaluma "progressives" ideas opinions etc...., many a times you can feel and see others rooting against them simply because of their actions, how they present their beliefs, and the over burdening of exageration and stereotypes etc....
Go Occupy! December 30, 2011 at 11:56 PM
OK, that's like the third or fourth time you (LongTermLocal) have said: "Go Occupy, I'm never going to respond to ANYTHING you have to say, ever, ever again. And I really mean it this time Buster. I didn't really mean it those other times because I say things and then forget I said them but I really mean it now, so look out, I won't be conversing with you anymore...I think...oh wait, my Gingrinch For President campaign packet just arrived in the US Mail delivered by one a them hippy 99% postal workers. Oh, that's better, hi Newt, why yes, I'll write you a check...." All I can think about your constantly rude and anti-American, anti-President, racist and bigoted comments LongTerm, is that I hope that IF you are still driving a car, there is someone who cares about you that knows it's time to take the keys away.
LongTimeLocal December 31, 2011 at 12:42 AM
I've clearly said I will no longer respond to your trolling on a particular subject after a point as you are more than capable of making a fool of yourself. This is the last on this subject but I will be clear on facts, something you don't like to understand. Are you clear on the concept now? Your rudeness and overall ignorance stand for themselves and require no help from me for other readers to see you for what you are. Please continue to live in your strange world of assumptions and convenient 'truths. The people of this town see you for what you are and need no help from me
Linda Rowan December 31, 2011 at 02:11 AM
So the wet lands in question are not alluvial scrub? Therefore not protected? SOmeone should go through the General Plan with a fine tooth comb. Get a petition going for a moritorium....also go over the EIR....you need all the investigative know how to stop the asphalt plant until a compromise is reached. One judge is not the last word on this issue,. Find some place far away to bulllllild the asphalt plant.
Linda Rowan December 31, 2011 at 02:24 AM
Go Occupy....please leave names of polititions out of this...and Alfred Hitchcock...do YOU have any constructive help in the matter at hand? Ranting seems to be your theme as of late:( Throw out some ideas instead.:)
Go Occupy! December 31, 2011 at 02:47 AM
And LongTermLocal, you are yet again saying that you will not respond to anything that I write? Again? How many times will you say you are not responding to me? Five, six, what is it? Try this, just remember you said you would not respond to me...and then don't! Ha!
Linda Rowan December 31, 2011 at 03:09 AM
Go Occupy...you would be surprised the places I have been. I have an Aunt there and I HAVE stepped foot in Petaluma,Loomis,Santa Clara,San Francisco..and a lot of other places in Calif,my HOME State...I was also at the State Capital on many an occasion as a political activist and know plenty of politcians.. I have been paid for my political know how too. I was also responsible for a City that had exersized eminent domain on 3 homes and got the City Council to reverse their decision...which was unhead of. Cities bleed into other cities..Petaluma is not insular...we are ALL Californians. When my political group needed support,we pulled from other cities and cited some of their problems,etc. So don't be so rude.
Linda Rowan December 31, 2011 at 04:07 AM
I have ALL my news paper clipping to PROVE myself...I am also named in OUR General Plan. I was appointed to the Community Council Housing Authority,the Community Redevelopement Advisory Counsel...and various organizations would submit their agenda for money from the Block Grant Funds that EVERY city gets...of course with stipulations attached...but thats another story.Helped with the General Plan....what do you have? Now leave me alone!
LongTimeLocal December 31, 2011 at 05:09 AM
Last response from me on this subject as I have consistently stated - as they say - don't feed the trolls. Actually I responded once, stating I would not respond futher on a subject, as it was apparent you were simply trying to stir things up (check this if you wish and want to look even more stupid), off subject, and causing problems for those who support this cause. As to me, I hold a state office and do my best to help the community as well as volunteering my time - something requiring actual action. You, sir, seem to be simply interested in lolling about and not contributing in any positive way except sitting around in a tent and passing misinformation as fact. Reply to this as you wish, I will not respond as you are clearly a fool - it is honest people such as I, and Linda, and the many others who contribute through actions, within the system, who actually make a difference rather than your constant ill-informed tantrums that will make our community a better place.
Linda Rowan December 31, 2011 at 06:12 AM
Time for a new judge, look how a gang banger murderer got only 3 years probation and other stories. http://www.fugitive.com/2009/09/15/javier-ceja-of-sonoma-gets-only-3-years-probation-for-accessory-to-gang-related-murder-of-luis-miranda/
Linda Rowan December 31, 2011 at 06:17 AM
http://www.fugitive.com/2009/03/31/keith-david-kellum-pleads-guilty-to-petaluma-murder/
Beth Stokes January 02, 2012 at 04:43 PM
I'm wondering if there's a "Conservation Easement" on the park's title? If there's a conservation easement on the wetlands, then Dutra will have to get eminent domain to proceed. Does anyone know?

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